Adams v. Roscoe Lumber Co.
Decision Date | 12 May 1899 |
Citation | 53 N.E. 805,159 N.Y. 176 |
Parties | ADAMS et al. v. ROSCOE LUMBER CO. et al. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Second department.
Action by Edwin W. Adams and another against the Roscoe Lumber Company and another. A judgment directing a verdict for plaintiffs was affirmed (37 N. Y. Supp. 265), and the lumber company appeals. Affirmed.
George W. Stephens, for appellant.
Robert H. Wilson, for respondents.
This was an action to recover possession of certain personal property, consisting of a quantity of lumber found to be of the value of $607.86. It is conceded that prior to the time of the transaction, which will be presently referred to, plaintiff's were the owners of the lumber, and they parted with the possession by an executory contract of sale to the defendant Mackintosh, who agreed to purchase the same, and to pay for it by note at 60 days. The arrangement for the sale of the lumber was made by the plaintiffs' manager with certain persons who were in the employ of Mackintosh, one of them as manager, another as bookkeeper, and the other as foreman of the business. It seems that at the time of the making of this contract of sale the defendant Mackintosh was ill, and unable to attend at his place of business, and the persons last referred to acted in his behalf in making the purchase of the lumber from the plaintiffs. The lumber was delivered to the vendee on or about the 10th of December, 1894, and, as soon as the plaintiffs were advised that the delivery was completed, they mailed to the purchaser a statement showing the quantity of lumber delivered and the amount of the purchase price, and there was written upon the face of this statement a notice that the terms of payment were a note payable at 60 days from date. The plaintiffs, with this statement, also addressed a letter to the purchaser requesting him to send the note in accordance with these terms. The letter and statement were both received at the purchaser's place of business, and the manager, bookkeeper, and foreman had knowledge of the purchase and the terms, since they in fact participated in making the arrangement. The note was never delivered, and, after waiting a few days, the plaintiffs' agent, who had conducted the whole transaction, called at the office of the vendee for the note and failed to obtain it. He called several times afterwards, and the parties in charge of the business of the vendee put him off by excuses and promises that the note would be sent in due time. During the time from the date of sale to the delivery of the property, and for some days afterwards, while the plaintiffs' agent was endeavoring to procure the note according to the conditions of the sale, the manager, bookkeeper, and foreman of the vendee, who had made the purchase in his behalf and were cognizant of all the facts, were engaged in forming a corporation for the purpose of acquiring the business and assets of the vendee, and when the corporation had been formed they refused to give the note, and claimed that the corporation had become vested with the title to the lumber. Thereupon the plaintiffs brought this action upon the theory that the sale was conditional only upon delivery of the note representing the purchase price. Their position is that the arrangement constituted an executory contract of sale to be completed by the performance of simultaneous and concurrent acts by the buyer and seller, and that the title to the property did not pass until performance by the purchaser of the condition,...
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...has the same effect as if the jury had found a verdict in the plaintiff's favor after the case was submitted to it. Adams v. Lumber Co., 159 N. Y. 176, 53 N. E. 805;Smith v. Weston, 159 N. Y. 194, 54 N. E. 38;Thompson v. Simpson, 128 N. Y. 270, 283,28 N. E. 627;Koehler v. Adler, 78 N. Y. 28......
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...exception taken by the defendant. Neither party asked to have any question of fact submitted to the jury. In the case of Adams v. Lumber Co., 159 N. Y. 176, 53 N. E. 805, O'Brien, J., in delivering the opinion of the court, says: ‘The court directed a verdict in favor of the plaintiffs for ......
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... ... we find ample authority in other jurisdictions for our ... conclusion. Adams v. Roscoe Lumber Co ... (1899), 159 N.Y. 176, 180, 53 N.E. 805; United ... States v. Two Baskets ... ...
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